Saturday, July 25, 2009

Best Take on Dr. Henry Louis Gates' Arrest

I have no doubt whatsoever, from my experience as a retired municipal judge, that "disorderly conduct" and "disturbing the peace" laws have some limited value in allowing peace officers to diffuse some situations for the public good.

HOWEVER, I also have no doubt that these laws are often used as retaliation by cops who get their egos bruised. I've seen it dozens of times. I'm proud to say that I "threw out" every such charge when the facts indicated the cop chose to over-react rather than calmly and professionally diffuse a situation. Needless to say, the cops in the jurisdiction where I presided got a lot more professional really quickly. Nothing worse than a supposedly impartial judge who rubber stamps police misconduct. It undermines the rule of law, and has no place in our civilized concept of what justice should be all about.

I have no doubt whatsoever from a review of all the facts, that this cop in Cambridge severely overreacted. Had this been a white professor and an African American cop, you'd have heard the right wing screaming "A Man's Home is his Castle." No such modicum of respect has been accorded professor Gates. Before you read the rest of this, read the POLICE REPORT.

. . . . Policemen should not be allowed to arrest someone for being an asshole in their own home. If that was the case, right-wing bloggers would all be doing 10-20. It appears clear, and I guess there may be audio tape to this effect, that the cop came to Gates' house, figured out that he was not a burglar, words were exchanged, and then the cop arrested him for disorderly conduct. That's really over the line of what cops should be allowed to do, regardless of the motivations, racial or otherwise.

The crime of disorderly conduct, beloved by cops who get into arguments with citizens, requires that the public be involved. Here's the relevant law from the Massachusetts Appeals Court, with citations and quotations omitted:

The statute authorizing prosecutions for disorderly conduct, G.L. c. 272, § 53, has been saved from constitutional infirmity by incorporating the definition of "disorderly" contained in § 250.2(1)(a) and (c) of the Model Penal Code. The resulting definition of "disorderly" includes only those individuals who, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... (a) engage in fighting or threatening, or in violent or tumultuous behavior; or ... (c) create a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.' "Public" is defined as affecting or likely to affect persons in a place to which the public or a substantial group has access.

The lesson most cops understand (apart from the importance of using the word "tumultuous," which features prominently in Crowley's report) is that a person cannot violate 272/53 by yelling in his own home.

Read Crowley's report and stop on page two when he admits seeing Gates's Harvard photo ID. I don't care what Gates had said to him up until then, Crowley was obligated to leave. He had identified Gates. Any further investigation of Gates' right to be present in the house could have been done elsewhere. His decision to call HUPD seems disproportionate, but we could give him points for thoroughness if he had made that call from his car while keeping an eye on the house. Had a citizen refused to leave Gates' home after being told to, the cops could have made an arrest for trespass.

But for the sake of education, let's watch while Crowley makes it worse. Read on. He's staying put in Gates' home, having been asked to leave, and Gates is demanding his identification. What does Crowley do? He suggests that if Gates wants his name and badge number, he'll have to come outside to get it. What? Crowley may be forgiven for the initial approach and questioning, but surely he should understand that a citizen will be miffed at being questioned about his right to be in his own home. Perhaps Crowley could commit the following sentences to memory: "I'm sorry for disturbing you," and "I'm glad you're all right."

Spoiling for a fight, Crowley refuses to repeat his name and badge number. Most of us would hand over a business card or write the information on a scrap of paper. No, Crowley is upset and he's mad at Gates. He's been accused of racism. Nobody likes that, but if a cop can't take an insult without retaliating, he's in the wrong job. When a person is given a gun and a badge, we better make sure he's got a firm grasp on his temper. If Crowley had called Gates a name, I'd be disappointed in him, but Crowley did something much worse. He set Gates up for a criminal charge to punish Gates for his own embarrassment.

By telling Gates to come outside, Crowley establishes that he has lost all semblance of professionalism. It has now become personal and he wants to create a violation of 272/53. He gets Gates out onto the porch because a crowd has gathered providing onlookers who could experience alarm. Note his careful recitation (tumultuous behavior outside the residence in view of the public). And please do not overlook Crowley's final act of provocation. He tells an angry citizen to calm down while producing handcuffs. The only plausible question for the chief to ask about that little detail is: "Are you stupid, or do you think I'm stupid?" Crowley produced those handcuffs to provoke Gates and then arrested him. The decision to arrest is telling. If Crowley believed the charge was valid, he could have issued a summons. An arrest under these circumstances shows his true intent: to humiliate Gates.

The cop baited the guy into leaving the house so he could arrest him for making a cop feel bad.

I appreciate the work of law enforcement. But regardless of race, too many cops have the belief that if they get insulted, they have the right to turn that into an arresting offense. That's not the law whatsoever, nor should it be. It creates a chilling effect among the public not to call out bad behavior in law enforcement or raise your voice in any way. I know we're all supposed to believe that cops are saintly, but I live in LA. Police misconduct happens all the time, and we should be vigilant when it does.

Instead, the media takes the soccer ball and chases it into the corner, without any semblance of factual records or perspective. It becomes an emotional argument instead of a factual record of misconduct. We pay cops with tax money. We should not risk arrest when arguing with them.

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